We will get there; but not yet. The road is long, and the path twists and turns. The work is arduous. Obstinate obstacles plant themselves firmly in the path of justice. Yet the people- of all colors, races and persuasions – know what they want; they can feel what must be done. This is not new. They protested for AmadouDiallo, TimothyStansbury, SeanBell, Trayvon Martin, Eric Gardner, OcarGrant, TamirRice, John Crawford III, Akai Gurley, Eleanor Bumpers, Noel Polanco, Kimani Gray, Kendrec Mcdade, Timothy Russell, Patrick Dorismond, Ousmane Zongo,  Orlando Barlow, Ramarley Graham and countless other sacrificed souls.

Obstacles to justice do not acknowledge or respect the humanity of the African American male. Doing so requires seeing the black man as possessed of the same attributes, frailties, dreams and aspirations, and fears as them. They must actually see the person, not an apparition they imbue with characteristics originating from their irrational fears, media driven caricatures or notions inculcated from the time they left the womb; notions that deny the humanity, and makes tenuous and endangered the very existence of the young black man on any street, in any city, in any state of these United States. Every day they are the hunted on any street, in any city, in any state of these United States every day.

The apparition is a vacuous body, a walking corpse on which the dominant society writes their story, obfuscates, justifies, destroys, and ultimately discards the carcass. Citizens of like mind feast and gorge on yet another victim certain that they are just, right, and have yet again done their duty to protect the sanctity and purity of the republic. What does this experience do to the soul of the sentient being? His existence and his kind –the bearers of the stain and burden of beautiful hue-is the projection of everything his country abhors; that he is the footstool on which they stand to affirm their personhood. For if you cut a man he may bleed, and even die. But far worse is it that he should know of the injury as he fades. We must get there, lest we all perish in the true fire that has been coming, and is coming. It seems to be inevitable, but it doesn’t have to be,

It is with this in mind that I cry for Michael Brown. As I think about this miscarriage of “justice”, this “No True Bill”- failure to indict- in Ferguson, Missouri my heart is full. My tears are laced simultaneously with rage, bewilderment, and a panoply of their relatives. The guardians of American purity, the powers that be, the media, the pundits, the prognosticators never saw Michael Brown. Even in death he is that apparition. He was six feet four inches and shy of three hundred pounds, reportedly. Much was made of his appearance. He was a big child. Darren Wilson, though you would not have known that until recently, was also six feet four inches and about two hundred and twelve pounds. Did Wilson’s size conjure up the same images in the collective American psyche?

But let us stay with Michael Brown. I did not perceive him as a thug, or a strong arm robber. Stealing the Cigarillos showed him to be at best a bully. I am not minimizing the larceny. Nevertheless stealing and insolence to a police officer does not qualify for the ultimate penalty. In the overall scheme of things he was not a violent criminal. Certainly he was not the kind of person I’ve represented for years in my practice as a criminal defense attorney. If America wanted to know Michael Brown, ask his friends and family. He was on his way to a higher education. The
incongruity of stealing Cigarillos and aspiring to attend College is easily explained. As a human
being he was endowed with all the contradictory qualities and impulses. Yet in death he was offered up as simply Criminal. That is America’s creation. Just examine the crime statistics and the disparity in the rates of incarceration. Examine the percentage of African American males who have been either arrested, incarcerated or are on parole. How do these disparities occur? Is it any wonder then that the apparition remains with us? But I digress. What we know beyond argument is that Michael Brown was still his mother’s “saint- like” gentle giant.

Why did Darren Wilson kill him? What did Wilson see on Canfield Drive at high noon when he encountered Brown? An examination of his grand jury testimony shows Michael Brown to be that apparition, a figment of Wilson’s imagination, and America’s historical projections of what it means to be young, black, and male. He paints Brown with all of his worst fears, whether taught from childhood or drilled into him as a police officer. His testimony was:

“I then looked at him and told him to get back and he was just staring at
me, almost like to intimidate me or overpower me. The intense face he had
was just not what I expected from any of this”.

“…I tried to hold his right arm and use my left hand to get out to have
some type of Control and not be trapped in my car any more. And when I
grabbed him, the only way I can describe it is I felt like a five year old
holding onto Hulk Hogan”.

“…he looked up at me and had the most intense aggressive face. The only
way I can describe it, it looks like a demon, that’s how angry he looked…”.

“…I see him start to run and I see a cloud of dust behind him”.

“…So when he stopped, I stopped. And then he starts to turn around. I tell
him to get on the ground, get on the ground. He turns, and when he looked
at me, he made a grunting, like aggravated sound and he starts, he turns
and he’s coming back towards me. His first step is coming towards me, he
kind of does like a stutter step to start running. When he does that, his left
hand goes into a fist and goes to his side, his right one goes under his shirt
in his waistband and he starts running at me”.

“…It looked like he was almost bulking up to run through the shots, like
it was making him mad that I’m shooting at him. And the face that he had
was looking straight through me, like I wasn’t even there, I wasn’t even in
his way”.

“…At this point I’m backpedaling pretty good because I know if he
reaches me, he’ll kill me”.

The only detail missing from this fanciful tortured account was that as Michael Brown lay dying he was whistling at a white woman. Wilson is not describing a human being. That’s because he’s not seeing a human being. What he sees is that apparition on which he projects a powerful, snarling, stomping, grunting beast; a raging black man beast. You need only close your eyes and recite his testimony in a vacuum or tell it to a child and ask that child what you just described. One might surmise that the stress of the situation affected Wilson’s perceptions. That would be wrong.
He is Wilson’s, indeed America’s, depictions of the African American male. We have seen this all too often. His descriptions are the stereotypical attributes ascribed to the African American male since he arrived on the shores of America. In 1915 D.W. Griffith used it to great effect and acclaim in his celebrated scandalous racist movie “The Birth of a Nation”. This is nothing new. The prosecutors’ failure to challenge Wilson’s account manifests their acceptance and participation in the demonizing of Brown. It is easy to shoot a demon, rationalize it, and lie about it.

The prosecutors’ feckless examination of Wilson violated their ethical obligation to affirm Brown’s humanity, and seek justice. Indeed they were Wilson’s defense attorneys. It was a textbook direct examination. At various points they led Wilson through his testimony, and even suggested answers. Normally in a Grand Jury presentation -at least it has been my experience in New York- the target of the Grand Jury is allowed to testify in the narrative. That is to say the prosecutor says ‘tell me what happened”. After the witness concludes his story, he is subjected to a vigorous cross examination testing both the witness’s veracity and credibility. That is what happens to a target of an investigation. That did not happen. Wilson was never really the target of this grand jury. Demonizing Michael Brown and discrediting any rendition of facts contrary to Wilson’s account were the objects in the prosecutor’s cross hairs.

Wilson’s testimony was sometimes inconsistent with things he said minutes earlier. Yet these guardians of justice were oblivious. In fact the prosecutor brought out – I dare say testified- testimony that Wilson had not previously fired his gun; that the Canfield Green community was hostile to police; that anytime any law enforcement officer had asked to speak to him after the incident he willingly and voluntarily came in to be interviewed and answered all questions; and that if he had omitted details in previous interviews, it is not because he is imagining them now
but because he is putting so much thought into it now. The prosecutor even elicited the penultimate
statement that Wilson thought his life was in jeopardy. It was disgraceful.

After the deed and desired outcome, Saint Louis County prosecutor Robert McCulloch released a treasure trove of information. His refusal to heed the calls to step aside, and his smugness reveal his office’s complicity in impeding progress. It takes tremendous arrogance to make public this evidence knowing his malfeasance. It is only superseded by the press conference announcing the grand jury’s decision. McCullough explained what the grand jurors thought of the evidence, as if they told him. This was not an investigative grand jury. It did not issue a report. Grand jury proceedings are secret. After the presentation of the evidence only the grand jurors deliberate. No
one else is allowed in the room during deliberations, not even the prosecutor. It is astonishing that he was not questioned about the basis, or precedent for his actions or his comments about what the grand jury found.

These comments were his thoughts, his conclusions about the witnesses, and a manipulation of the process. In announcing the grand jury decision he demonstrated why he should not have presented this case. I know of no case where a prosecutor explains the inner workings of the deliberative process of the grand jury, and what they thought of the witnesses’ credibility. Regrettably his conclusions about the grand jury were probably right. They suffer from the same American disease regarding the African American male. They – black or white- see black males as the apparition – the vessel in which you throw all that society reviles.

This case, Wilson’s testimony, McCulloch’s intransigence and malfeasance lay bare that there are still obstinate obstacles to overcome. America’s well is still filled with the water of dehumanization, stereotypes, fear, and caricatures of the African American male. Those who drink from it have reservations in the trash bin of history. However, I am truly heartened by the public’s rejection of the grand jury’s finding. They see the poisoned well, and reject the cup of water as offered. The demonstrations and agitating continue the journey to truth and justice. They are not deterred by the twists and turns. We are not there yet, but we are closer.

The author has been a criminal defense attorney in New York for the past 31 years.